|European Union directive|
|Title||Directive on the harmonisation of certain aspects of copyright and related rights in the information society|
|Made by||European Parliament & Council|
|Made under||Arts. 42), 55 & 95|
|Journal reference||L167, 2001-06-22, p. 10|
L6, 2002-01-10, p. 70
|Date made||2001-05-22; updated: 2019-3-28|
|Came into force||2001-06-22|
|Commission proposal||C108, 1998-04-07, p. 6|
C180, 1999-06-25, p. 6
|EESC opinion||C407, 1998-12-28, p. 30|
|EP opinion||C150, 1999-05-28, p. 171|
The Copyright Directive, (also known as the Information Society Directive) was first made in 2001 and updated in 2019. It is a directive of the European Union enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. The directive was first enacted under the internal market provisions of the Treaty of Rome and updated on 26 March 2019.
The first directive was subject to unprecedented lobbying and was considered a success for Europe's copyright laws. The 2001 directive gave EU Member States significant freedom in certain aspects of transposition. Member States had until 22 December 2002 to implement the directive into their national laws, although only Greece and Denmark met the deadline. The updated directive, which had been contested by lobbying groups on both sides of the issues, gives EU members until 2021 to revise their own country's laws to meet the new Directive's requirements.
Articles 2–4 contain definitions of the exclusive rights granted to under copyright and related rights. They distinguish the "reproduction right" (Article 2) from the right of "communication to the public" or "making available to the public" (Article 3): the latter is specifically intended to cover publication and transmission on the internet. The two names for the right derive from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (Arts. 8 & 10 respectively). The related right for authors to authorise or prohibit any form of distribution to the public by sale or otherwise is provided for in Article 4 (exhaustion rights).
Exceptions and limitations
Article 5 lists the copyright exceptions which Member States may apply to copyright and related rights. The restrictive nature of the list was one source of controversy over the directive: in principle, Member States may only apply exceptions which are on the agreed list, although other exceptions which were already in national laws on 2001-06-22 may remain in force [Article 5(3)(o)]. The Copyright Directive makes only one exception obligatory: transient or incidental copying as part of a network transmission or legal use. Hence internet service providers are not liable for the data they transmit, even if it infringes copyright. The other limitations are optional, with Member States choosing which they give effect to in national laws.
Article 5(2) allows Member States to establish copyright exceptions to the Article 2 reproduction right in cases of:
- photographic reproductions on paper or any similar medium of works (excluding sheet music) provided that the rightholders receives fair compensation,
- reproductions on any medium made by a natural person for private use which is non-commercial provided that the rightholders receives fair compensation,
- reproduction made by libraries, educational establishments, museums or archives, which are non-commercial
- archival reproductions of broadcasts,
- reproductions of broadcasts made by "social institutions pursuing non-commercial purposes, such as hospitals or prisons" provided that the rightholders receives fair compensation.
Article 5(3) allows Member States to establish copyright exceptions to the Article 2 reproduction right and the Article 3 right of communication to the public in cases of:
- illustration for teaching or scientific research, provided the source, including the author's name, is acknowledged,
- uses for the benefit of people with a disability,
- current event reporting, provided the source, including the author's name, is acknowledged,
- quotations for purposes such as criticism or review, provided the source, including the author's name, is acknowledged,
- use necessary for the purposes of "public security" or to the proper performance or reporting of "administrative, parliamentary or judicial proceedings",
- use of political speeches and extracts of public lectures or similar works, provided the source, including the author's name, is acknowledged,
- use during religious celebrations or official celebrations "organised by a public authority",
- use of works such as architecture or sculpture located permanently in public places,
- incidental inclusion of a work in other material,
- the advertising the public exhibition or sale of artistic works
- caricature, parody or pastiche,
- for demonstration or repair of equipment,
- use of an artistic work, drawing or plan of a building for the purposes of reconstruction,
- for non-commercial research or private study
According to Article 5(5) copyright exceptions may only be "applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder", therefore the directive confirms the Berne three-step test.
Technological protection measures
Article 6 of the Copyright Directive requires that Member States must provide "adequate legal protection" against the intentional circumvention of "effective technological measures" designed to prevent or restrict acts of copying not authorised by the rightholders of any copyright, related right or the sui generis right in databases (preamble paragraph 47). Member States must also provide "adequate legal protection" against the manufacture, import, distribution, sale, rental, advertisement, or possession "for commercial purposes of devices, products or components or the provision of services which":
- are promoted, advertised or marketed for the purpose of circumvention of, or
- have only a limited commercially significant purpose or use other than to circumvent, or
- are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.
In the absence of rightsholders taking voluntary measures the Directive provides that Member States must ensure that technological measures do not prevent uses permitted under Article 5 on copyright exceptions, see Article 6(4). Article 7 requires that Member States must provide "adequate legal protection" against the removal of rights management information metadata.
Unlike Section 1201 of the Digital Millennium Copyright Act, which only prohibits circumvention of access control measures, the Copyright Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both the DMCA and the Copyright Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under the DMCA, potential users who want to avail themselves of an alleged fair use privilege to crack copy protection (which is not prohibited) would have to do it themselves since no equipment would lawfully be marketed for that purpose. Under the Copyright Directive, this possibility would not be available since circumvention of copy protection is illegal.
Implementation by member states
Member States had until 22 December 2002 to implement the Copyright Directive into their national laws. However, only Greece and Denmark met the deadline, while Italy, Austria, Germany and the UK implemented the directive in 2003. The remaining eight Member States (Belgium, Spain, France, Luxembourg, The Netherlands, Portugal, Finland and Sweden) were referred to the European Court of Justice for non-implementation. In 2004 Finland, the UK (with regards to Gibraltar), Belgium and Sweden were convicted for non-implementation.
National implementation measures include:
- Czech Republic: the amendment No. 216/2006 Coll. of the Czech Copyright Act
- Finland: 2005 amendment to the Finnish Copyright Act and Penal Code
- France: loi no 2006-961 du 1er août 2006 relative au droit d'auteur et aux droits voisins dans la société de l'information, better known as "DADVSI"
- United Kingdom: Copyright and Related Rights Regulations 2003
2019 revision and expansion
In 2016, leaked documents revealed that two new provisions were under consideration. The first, aimed at social media companies, sought to make automated screening for copyrighted content mandatory for all cases in which a user can upload data. The second proposed that news publishers should benefit financially when links to their articles are posted on a commercial platform. Responding to criticism, Axel Voss admitted that the law was "maybe not the best idea" but went on to support its passage and draft some of the language being used to amend article 11.
The update has been widely derided as a link tax. Its critics include German MEP Julia Reda, Internet company Mozilla and copyright reform activists associated with the Creative Commons. Some discussion has concerned the inability for news agencies to opt out of the payment system and the claim that ancillary rights for news snippets contradicts the Berne convention.
Article 13 reads the following:
- Article 13
- Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users
- Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
- Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.
- Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.
Susan Wojcicki, CEO of YouTube said the following on the potential unintended consequences of Article 13: ″The parliament’s approach is unrealistic in many cases because copyright owners often disagree over who owns what rights. If the owners cannot agree, it is impossible to expect the open platforms that host this content to make the correct rights decisions.″
Julia Reda, MEP has said: ″The mistake here is the blind faith in technology, thinking that because it's possible to detect music recordings automatically, it will be possible to detect any kind of copyrighted content. For example, if you have an audio recording of me speaking to you and I were to recite a poem translated from German to English, an upload filter would need to detect the content of what I'm saying and be able to discern whether this is a protected work or not. This kind of technology does not exist.″
- Copyright law of the European Union
- Digital Millennium Copyright Act
- Deckmyn v Vandersteen (Case law regarding Parody definition)
- Council Decision of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (2000/278/EC), OJ no. L089 of 2000-04-11, pp. 6–7.
- "EU Holds Online Platforms Liable for Users' Copyright Infringement", Fortune, 26 March 2019
- Hugenholtz, Bernt (2000). "Why the Copyright Directive is Unimportant, and Possibly Invalid". European Intellectual Property Review: 501.
- For that, and contrary views: Ginsburg, Jane C., "Can Copyright Become User-Friendly? Essay Review of Jessica Litman, Digital Copyright" (Prometheus Books 2001)(6 October 2001). Columbia-VLA Journal of Law & Arts, Vol. 25, No. 1, 2001. Available at SSRN: http://ssrn.com/abstract=288240 or doi:10.2139/ssrn.288240.
- "European Union Agrees to New Copyright Law", Wall Street Journal, 13 February 2019
- "Europe just passed sweeping new copyright rules that Big Tech hates", CNN, 26 March 2019
- * Patricia Akester, "Technological Accommodation of Conflicts between Freedom of Expression and DRM: The First Empirical Assessment" available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1469412 (unveiling, in the context of the Copyright/Information Society Directive, through empirical lines of enquiry, (1) whether certain acts which are permitted by law are being adversely affected by the use of DRM and (2) whether technology can accommodate conflicts between freedom of expression and DRM – linking, thus, policy conclusions to empirical findings).
- "Implementation of the directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the Information Society". Association of European Performers’ Organisations. Retrieved 9 September 2012.
- Malcolm, Jeremy (26 August 2016). "European Copyright Leak Exposes Plans to Force the Internet to Subsidize Publishers". EFF. Retrieved 7 June 2018.
- McNamee, Joe (28 February 2017). "A positive step forward against the 'censorship machine' in the copyright directive". EDRi. Retrieved 7 June 2018.
- "Das Leistungsschutzrecht ist nicht die beste Idee". 19 February 2018. Retrieved 7 June 2018.
- Synek, Greg (11 April 2018). "European copyright directive will impose link tax to subsidize publishers". Techspot. Retrieved 7 June 2018.
- Vollmer, Timothy (24 April 2018). "56 organisations tell EU legislator to delete the absurd link tax". Creative Commons. Retrieved 7 June 2018.
- Woollacott, Emma (8 May 2018). "EU moves closer to introducing 'link tax' – no exceptions allowed". Forbes. Retrieved 7 June 2018.